Board Issues Decision in George Amaral Ranches, Inc., Case No. 2014-CE-033-SAL
On October 15, 2014, the Board issued is decision and order in the above-entitled case.
Charging Party and Intervenor, United Farm Workers of America (“UFW”), has been the certified collective bargaining representative for the agricultural employees of George Amaral Ranches, Inc. ( “Employer”) since July 24, 2012. On June 17, 2013, the UFW filed unfair labor practice (“ULP”) charges against the Employer in the above-referenced case, alleging that, on June 14, 2013, its owner (“the owner”) threatened and physically attacked (by dragging and pulling, striking, and throwing a rock) a UFW organizer in the presence of three employees, which resulted in minor injuries to the organizer (marks and scratches on his chest). It was further alleged that the owner then unlawfully terminated the three employees who witnessed the confrontation.
On May 22, 2014, the Administrative Law Judge (“ALJ”) issued a decision is this matter, in which he found that the organizer legally took access to the Employer’s area of operations on the day of the incident, as he was investigating the status of persons who, though performing work for Employer, were employees of a company called Green Pak. The ALJ also found that Green Pak was acting as a farm labor contractor for Employer. The ALJ concluded that both the proprietor of Green Pak and the owner had threatened to call law enforcement on the organizer, and that such threats, though not alleged in the complaint constituted ULPs, as they had been fully litigated at the hearing. The ALJ found that the Employer’s owner did not drag and pull the organizer, but further found that he struck the organizer in an attempt to take the organizer’s cell phone, and that this act did not constitute a ULP, as the owner believed that the organizer was using the phone to record their confrontation. The ALJ did not make any finding regarding the cause of the marks and scratches on the organizer’s chest, or the alleged throwing of a rock. The ALJ finally held that the three employees had reasonable cause to believe they had been fired, but were not entitled to backpay, as the owner made them a valid offer of reinstatement a few minutes after firing them, and their rejection of this offer was unreasonable.
The Employer filed exceptions to the ALJ’s decision, arguing that the Board should overturn all findings of violations. The General Counsel (GC) and the UFW filed exceptions arguing, inter alia, that the ALJ erred in not finding the striking of the organizer to be a ULP, and also in finding that the three employees unreasonably rejected Employer’s offer of reinstatement.
The Board affirmed all the ALJ’s credibility determinations. However, the Board rejected the ALJ’s conclusion that the striking of the organizer did not constitute a ULP, and also rejected the ALJ’s conclusion that the three terminated employees unreasonably rejected their valid offer of reinstatement. The Board concluded that, under settled case law, the striking of the organizer by the owner in the presence of the employees was a ULP. The Board further held that, having witnessed the confrontation between the organizer and the owner, the employees had a reasonable fear of the owner at the time the reinstatement offer was made, and that they were entitled to backpay. The Board affirmed all of the ALJ’s other findings and determinations, as well as the ALJ’s order.
Chairman Gould authored a concurrence in which he agreed that the organizer had legally taken access on the day of the incident, and that Employer’s threat to call law enforcement on the organizer constituted a ULP. He also agreed that the three terminated employees reasonably rejected their offer of reinstatement. With respect to the organizer’s taking access on the day of the incident, the Chairman agreed that Employer’s interference with such access constituted a ULP, but provided a different rationale. The Chairman would not have overturned the ALJ’s finding that the owner believed that the organizer was recording him, nor would he have overturned the ALJ’s conclusion that, because of such belief, the striking of the organizer was not a ULP. Rather, the Chairman would have found a ULP based upon the owner being present in the vicinity while the organizer was taking access, as such presence violated the protected zone in which the organizer and the employees were engaged in protected communications pursuant to lawful access.
Board Issues Decision in Arnaudo Brothers, LP/Arnaudo Brothers, Inc., Case No. 2013-MMC-001
On October 3, 2014, the Board issued its decision and order in the above-entitled case.
On September 9, 2014, mediator Matthew Goldberg (the “Mediator”) issued a “Supplemental Report” in Mandatory Mediation and Conciliation (“MMC”) proceedings between Arnaudo Brothers, LP/Arnaudo Brothers, Inc. (“Arnaudo”) and the United Farm Workers of America (the “UFW”). In the Supplemental Report, the Mediator, made certain rulings, including that the term of the MMC Contract, which had been set at one year in the Mediator’s original report, would be extended to two years. With respect to the wage rates that would apply during the second year of the MMC Contract, the Mediator ordered that the matter would be “remanded to the parties for consideration of second-year wage rates.” Both Arnaudo and the UFW petitioned for review of the Supplemental Report. The UFW argued that the remand on second-year wage rates was improper.
The Board remanded the matter to the Mediator for further proceedings. The Board noted that language in the MMC statutes, the Board’s regulations, and the Board’s June 27, 2014 order in this case (40 ALRB No. 7) required that the Mediator’s second report state the basis for any determinations made and include citations to the relevant portions of the record. However, in the Supplemental Report the Mediator “remanded” the issue of second-year wage rates without stating any basis for the determination and without any reference to the record. Accordingly, the Board held that the Supplemental Report failed to meet the minimum standards for a mediator’s report. The Board remanded the matter to the Mediator for further proceedings and the issuance of a second report pursuant to Labor Code, section 1164.3 subdivision (c). The petitions for review were dismissed without prejudice as premature.
Office of Administrative Law Approves Regulations To Implement Senate Bill 126
On May 2, 2012, the Office of Administrative Law (OAL) approved the regulations adopted by the ALRB on April 18, 2012, implementing Senate Bill 126 and filed the approved regulations with the Secretary of State. OAL also granted the ALRB's request that the regulations go into effect immediately upon filing, therefore the regulations are now in effect. On April 18, 2012, the Agricultural Labor Relations Board (ALRB or Board) adopted regulations to implement Senate Bill 126. That bill made various changes to the Agricultural Labor Relations Act. The Board had previously held a public hearing on January 20, 2012 on the proposed regulations, hearing oral comments and accepting additional written submissions. At its scheduled February 1, 2012 public meeting the Board voted to adopt the regulations with what were considered nonsubstantive changes in response to the public comment received. While the proposed regulations were pending review by the OAL, it came to the Board’s attention that some of the changes arguably could be termed “substantive” and thus may have required a 15-comment period. Accordingly, in order to ensure complete compliance with the letter of the rulemaking requirements of the Administrative Procedure Act (Gov. Code § 11340, et seq.), on March 21, 2012 the Board withdrew the rulemaking file from OAL and rescinded its February 1, 2012 adoption of the proposed regulations. The Board then issued a 15-Day Notice providing the public the opportunity to submit comment on the changes made. No comments were received.
Subsequent Histories Table
The Subsequent Histories Table has been updated to include Board decisions through Volume 38 (2012). The updated pages are page 40 and 41.
See Subsequent Histories Table for updated page.
2010 and 2011 Case Digest Supplements
The supplements to the ALRB Case Digest for Volume 36 (2010) and Volume 37 (2011) can be used in conjunction with the digest issued in January of 1994 and the earlier supplements previously issued.
Case Digest Merged
The Case Digest and its supplements through 2011 have been merged into one document.
See ALRB Case Digest.